Fact Check: The Patent Eligibility Restoration Act Would Not Make Certain Inventions Automatically Patentable

Patents provide crucial incentives for inventors and businesses to invest time and funds into cutting-edge and emerging technologies. However, a series of Supreme Court decisions issued during the 2010s muddled the state of patent eligibility for many such technologies, such as medical diagnostics and artificial intelligence. The Patent Eligibility Restoration Act (PERA) would restore pre-2010 eligibility standards for these important technology areas and protect American innovation leadership.

On March 11, a group of tech and retail companies sent a letter to the chairs of the Senate Judiciary Committee advocating against PERA. However, their argument relied on — and perpetuated — numerous falsehoods about the bill.

Claim: PERA would “[sever] patent rights from their historic mooring to improvements in technology.”
In reality: PERA would restore patent rights to their historic foundations, only overturning recent judicial decisions that have misinterpreted longstanding statutes and deprived inventors in certain areas of technology of crucial IP protections. It would expand the requirements for patent eligibility to be consistent with the expansive scope of the language originally set out by Congress in Section 101 of the Patent Act prior to judicial intervention. However, it would not change the established requirements for actually obtaining a patent on a particular technological advancement, which include being novel and non-obvious — in other words, being a new technology or an improvement to one.
Claim: PERA would “overrule” established legal standards governing what patents may claim and make certain inventions automatically patentable.
In reality: PERA would affect only the legal standards surrounding patent eligibility, which is the statute that governs only what types of technology should be further considered for entitlement to a patent — it would not make any invention automatically patentable. The bill also would not affect standards governing how a patent must draft its claim, as this is not a question of eligibility but is largely governed by a different section of the patent statute, which PERA would not alter.
Claim: PERA “would do serious harm to the American innovation economy.”
In reality: The restrictions on patent eligibility caused by errant Supreme Court decisions such as Mayo v. Prometheus and Alice v. CLS have already caused serious harm to our innovation economy by stymieing research into pivotal technologies like medical diagnostics, artificial intelligence, and other areas of computer-implemented inventions. In the four years after Mayo, for instance, the U.S. medical diagnostics industry lost an estimated $9.3 billion in likely investment. By restoring patent eligibility in these important sectors, PERA would incentivize innovation and create significant benefits for both U.S. businesses and the American public.
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